From ICT:

Decision’s in. ‘Now’ begins work to fix Carcieri

The Supreme Court’s Feb. 24 decision in Carcieri v. Salazar is a significant defeat for the Narragansett Tribe, and perhaps for hundreds of other Indian tribes not federally recognized in 1934. Carcieri seemingly overturns the Department of Interior’s 70-year-plus practice of taking land into trust for Indian tribes federally recognized after 1934. But while the decision will be disruptive and expensive for Indian tribes affected, it might not be utterly devastating.

Carcieri held that the secretary has no authority to take land into trust for the Narragansetts because they are not an eligible Indian tribe as defined by the 1934 Indian Reorganization Act. Only tribes that meet the definition of “Indian tribe” under the IRA are eligible for the fee to trust benefit; in other words, according to the court, tribes that were “under federal jurisdiction” on June 1, 1934. The secretary of the interior did not recognize the Narragansett Tribe as an Indian tribe at that time, and so the court held that the secretary may not take land into trust for the tribe under the IRA. The court’s cramped reading of “now” is the worst kind of judicial formalism, like that recently critiqued by Professor Alex Skibine in the American Indian Law Review.

It is important to parse out exactly which tribes – and which land parcels – are affected by this decision. First, Indian lands already in trust with the secretary of the interior are safe, because the United States already owns the land and is immune from a suit seeking to reverse a fee to trust acquisition. That means tribes operating business enterprises on trust land will be protected by the federal government’s immunity. Second, Indian tribes such as the Pokagon Band of Potawatomi Indians with special statutes authorizing the secretary to take land into trust for them, usually as a result of a congressional recognition act or land claims settlement act, also are exempted.

Interestingly, the final paragraph in Justice Clarence Thomas’ majority opinion – a major litigation-starter – appears to assume that the Carcieri case is limited to its facts, and therefore only applies to the Narragansett Tribe. The concurring opinions from Justices Stephen Breyer and David Souter, as well as Justice John Paul Stevens’ dissent, suggest that numerous other tribes that can demonstrate that they were “under federal jurisdiction” in 1934, even if “the Department did not know it at the time,” in Breyer’s words. The concurring and dissenting justices named several tribes that fit into this category, including the Stillaguamish Tribe, the Grand Traverse Band of Ottawa and Chippewa Indians, and the Mole Lake Tribe. In short, according to Justice Breyer, a tribe that could show it was party to a treaty with the United States, the beneficiary of a pre-1934 congressional appropriation, or enrollment with the Indian Office as of 1934. The Narragansett Tribe, according to the court, was under the jurisdiction of Rhode Island in 1934, not the Department of the Interior, and so they are not eligible.

These exceptions to the general Carcieri rule mean that Indian tribes in the twilight of the concurring opinions may be engaged in expensive litigation to prove that they were “under federal jurisdiction” in 1934. Such litigation may require the heavy expenditure of funds for expert witnesses, forcing some tribes to undergo the strange and humiliating process of earning a kind of federal recognition all over again. In the coming weeks, the Obama administration should take the lead in defining what “under federal jurisdiction” means to blunt the effect of the Supreme Court’s decision.

Regardless, now is the time for Indian country to test the waters in Washington D.C., to see if the Obama administration is serious about change and to press the Democratic-controlled Congress for a Carcieri “fix.” It might not take much legislation, just a quick rewording of the definition of Indian tribe in the IRA to remove the word “now.” The administration and Congress may be sympathetic, given that the Roberts Court seems to go out of its way to punish Indian tribes. A Carcieri “fix” pitched as merely reversing a bad Supreme Court decision would not work a major change on the federal-tribal-state relationship because it would merely be restoring the pre-Carcieri state of affairs that had existed for over seven decades.

For the Narragansett Tribe, this decision is yet another slap in the face to a tribe that has done nothing wrong but what it can to survive. For six justices, the Narragansetts did not pass the test of “federal jurisdiction,” a test that no one could have known in 1934 they would have been required to pass. Nothing could be more arbitrary and capricious.

Matthew L.M. Fletcher is associate professor at the Michigan State University College of Law and director of the Northern Plains Indian Law Center. He is an enrolled citizen of the Grand Traverse Band of Ottawa and Chippewa Indians.